Deadlines for applying to an administrative court: how not to lose the right to protection

Ukrainians quite often encounter decisions, actions or inactions of government bodies that affect their rights and legitimate interests. At the same time, many mistakenly believe that the time limits for applying to the court are always three years, but in the case of administrative disputes, the rules are completely different. The administrative court operates according to clearly defined time limits, and missing even a short period can make the protection of rights practically impossible. Therefore, it is important to understand which categories of cases fall under administrative jurisdiction, which actions can be appealed, and how the time limit for applying is correctly calculated.

Lawyers of the law firm “Repeshko and Partners”, whom our editorial team contacted, commented on the issue of time limits for applying to the administrative court. They explained what you should pay attention to so as not to lose the opportunity to protect your rights in court.

Usually, everyone is used to the fact that the time limit for applying to the court is three years. This is not entirely true, or rather, yes, but only for civil law relations. If the case is to be considered in an administrative court, then this changes everything, because here the deadlines for applying to the court to protect one’s rights are completely different. In this case, a clear rule applies: whoever did not have time, he was late. Therefore, first of all, it is necessary to determine which cases are considered by administrative courts from the point of view of protecting the rights of an ordinary citizen.

The jurisdiction of administrative courts extends to cases in public law disputes, in particular:

1) disputes between individuals or legal entities with a subject of government authority regarding the appeal of its decisions (normative legal acts or individual acts), actions or inaction, except for cases where a different procedure for judicial proceedings is established by law for the consideration of such disputes;

2) disputes regarding the admission of citizens to public service, its completion, dismissal from public service;

3) disputes between subjects of public authority regarding the exercise of their competence in the field of management, including delegated powers;

4) disputes arising from the conclusion, execution, termination, cancellation or invalidation of administrative contracts;

6) disputes regarding legal relations related to the electoral process or referendum process;

7) disputes between individuals or legal entities with the manager of public information regarding the appeal of his decisions, actions or inaction regarding access to public information;

8) disputes regarding the seizure or forced alienation of property for public needs or for reasons of public necessity;

9) disputes regarding the appeal of decisions of attestation, competition, medical and social expert commissions, expert teams for the assessment of the daily functioning of a person and other similar bodies, the decisions of which are binding on state authorities, local self-government bodies, and other persons;

10) disputes regarding the formation of the composition of state bodies, local self-government bodies, election, appointment, dismissal of their officials;

We have provided an incomplete list of cases, but they may concern every citizen. At the same time, every person has the right to apply to an administrative court in accordance with the procedure established by the Code of Administrative Procedure if he believes that the decision, action or inaction of a subject of public authority violates his rights, freedoms or legitimate interests. In such a case, he can ask the court to protect his rights by:

1) declaring a regulatory legal act or its individual provisions unlawful and invalid;

2) declaring an individual act or its individual provisions unlawful and annulling it;

3) declaring the actions of a subject of public authority unlawful and requiring him to refrain from committing certain actions;

4) declaring the inaction of a subject of public authority unlawful and requiring him to commit certain actions;

5) establishing the presence or absence of the competence (authority) of the subject of authority;

6) the court’s adoption of one of the decisions specified in paragraphs 1-4, and the recovery from the defendant – the subject of authority of funds to compensate for the damage caused by his unlawful decisions, action or inaction.

However, the Code of Administrative Procedure clearly establishes that a claim may be filed within the time limit for applying to an administrative court established by this Code or other laws.

A six-month period is established for applying to an administrative court for the protection of the rights, freedoms and interests of a person, which, unless otherwise established, is calculated from the day when the person learned or should have learned about the violation of his rights, freedoms or interests. Here, pay special attention – the general time limit for applying to an administrative court is only six months.

A three-month period shall be established for an appeal to an administrative court by a subject of public authority, which, unless otherwise established, shall be calculated from the date of the emergence of grounds that give the subject of public authority the right to present the requirements specified by law. The Code of Administrative Procedure and other laws may also establish other periods for an appeal to an administrative court by a subject of public authority.

It should be noted that in order to protect the rights, freedoms and interests of a person, the Administrative Court of Ukraine and other laws may establish other periods for an appeal to an administrative court, which, unless otherwise established, shall be calculated from the date on which the person learned or should have learned about the violation of his or her rights, freedoms or interests.

Also note that if the law provides for the possibility of a pre-trial procedure for resolving a dispute and the plaintiff has used this procedure, or the law determines the mandatory nature of the pre-trial procedure for resolving a dispute, then a three-month period is established for applying to an administrative court, which is calculated from the date of delivery to the plaintiff of the decision based on the results of consideration of his complaint against the decision, actions or inaction of the subject of public authority. As we can see, the six-month period is halved.

If the decision based on the results of consideration of the plaintiff’s complaint against the decision, actions or inaction of the subject of public authority was not adopted and (or) delivered by the subject of public authority to the plaintiff within the time limits established by law, then a six-month period is established for applying to an administrative court, which is calculated from the date of the plaintiff’s application to the subject of public authority with the relevant complaint against the decision, actions or inaction of the subject of public authority. That is, a person filed a complaint on January 1 to a state body, but did not receive anything in response. In this case, the deadline for filing a lawsuit is 6 months and is calculated from January 1.

A one-month deadline is established for filing a lawsuit in cases regarding the admission of citizens to public service, their passage, and dismissal from public service. At the same time, mediation does not affect the expiration of the deadline for filing a lawsuit in an administrative court. Understanding that there are cases when not everyone can rush to file a lawsuit, the CAS of Ukraine has Article 123, which provides for the consequences of missing the deadlines for filing a lawsuit in an administrative court, which states the following.

If a person files a lawsuit after the expiration of the deadlines established by law, without an application for renewal of the missed deadline for filing a lawsuit in an administrative court, or if the grounds indicated by the person in the lawsuit are recognized by the court as frivolous, the lawsuit remains without motion. At the same time, within ten days from the date of delivery of the decision, the person has the right to apply to the court with an application for renewal of the deadline for applying to the administrative court or to indicate other grounds for renewal of the deadline.

If the application is not submitted by the person within the specified period or the grounds indicated by him for renewal of the deadline for applying to the administrative court are recognized as unfounded, the court returns the statement of claim. At the same time, if the fact of the plaintiff’s missing the deadline for applying to the administrative court is discovered by the court after the opening of proceedings in the administrative case and the plaintiff does not apply for renewal of the missed deadline for applying to the administrative court, or if the grounds indicated by him in the application are recognized by the court as unfounded, the court leaves the statement of claim without consideration.

If, after the opening of proceedings in the case, the court concludes that the court’s conclusion set out in the ruling on the opening of proceedings in the case on recognizing the reasons for missing the deadline for applying to the administrative court as valid was premature, and the court does not find other grounds for recognizing the reasons for missing the deadline for applying to the administrative court as valid, the court leaves the statement of claim without consideration.

So, in the event of missing the deadline for applying to the court, the main thing is to file an application for renewal of the missed deadline. In addition, the validity of the missed deadline should be substantiated, ideally supporting this with appropriate evidence.

We are often asked the question: what can serve as evidence of valid reasons for missing the deadline for applying to the court? Evidence can be any documents that prove this, namely:

• a certificate of illness or hospital;
• a statement of inpatient treatment;
• an order for a business trip due to work needs;
• tickets confirming the need for the trip;
• an act or certificate of constant supervision of a person who needs it;
• other documents.

The legal institution of the deadlines for applying to an administrative court to protect one’s violated right does not contain an exhaustive, detailed list of reasons or criteria for determining them. Instead, the law introduces evaluative, qualitative parameters for determining such reasons – they must be valid, real or irresistible, and objectively insurmountable during the period of application to the court. These reasons (or factors of objective reality) must be incompatible with the circumstances when the subject of the appeal to the court knew or could not have been unaware of the violated right, nothing truly prevented him from applying to the court, but he did not do this and violated these terms due to his own negligence, frivolity, indifference, disorganization or other similar attitude to the right of access to the court.

There is no other way to determine which reasons should be attributed to valid ones than through an external assessment (qualification) of the content of specific circumstances, the chronology and sequence of actions of the subject of legal relations before applying to the court to protect his right. Such an assessment must include certain phenomena, factors and their legal nature; the duration of the missed deadline; whether and how certain factors could have prevented timely application to the court, whether they are causally related to the missed deadline for applying to the court; what was the behavior of the subject of the appeal during this period; what actions did he take and whether they were related to preparing for an appeal to the court, etc.

In this regard, we strongly advise you to carefully monitor the deadlines for applying to the court and, if necessary, consult a lawyer in order to avoid problems in the future. You should not postpone filing a claim until the last moment, hoping that there is enough time. Unexpected circumstances can complicate the process and lead to situations where the court may renew the missed deadline, but is not obliged to do so if the evidence provided turns out to be insufficient or is regarded as a “tear letter” — a request without significant justification and documentary confirmation.

You should apply to the administrative court without delay, accurately determining the category of the case and adhering to the deadlines established by the Code of Administrative Procedure. If you miss the deadline, you must immediately submit an application for renewal of the deadline and attach real evidence confirming the validity of the reasons, such as sick leave, business trips, caring for loved ones, or other objective circumstances.